The Two Words That Will Define the Next Several Weeks: Special Prosecutor

Last week, James Comey asked for "a significant increase in resources" for his Russia investigation. This week, he was fired. Among other things, Comey's team was specifically investigating contact between Russian agents and President Trump's associates, including Michael Flynn and Attorney General Jeff Sessions, the latter of whom recused himself from the matter. That didn't stop Sessions—nor Deputy Attorney General Rod Rosenstein—from recommending Comey's firing to the president. What's more, it was Rosenstein whom Comey had directly asked for the resources.

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The White House's official position is that Comey's firing is not connected to the FBI's Russia investigation. Trump, Sessions, and Rosenstein all issued letters addressing the decision, the latter of which claimed that Comey was fired because he no longer enjoyed the full faith and trust of the president. Comey lost that trust, we're supposed to believe, through his handling of the Hillary Clinton email investigation during the campaign.

Except before the election, Trump praised, over and over again, how Comey handled that investigation, as did Sessions. Moreover, Comey made his first public mistake in that investigation in July—10 months ago. If Trump was unhappy with the FBI Director, he could merely have asked for his resignation when he entered the White House—not five months into his presidency. Also, if Comey's transgressions occurred over several months, why was his dismissal so rushed and haphazard? (Comey learned the news while addressing a group of FBI field agents in LA. When he looked up at a TV and saw the news flash, he thought it was a prank—until Trump sent his longtime bodyguard and head of security over to FBI headquarters in Washington with a letter.)

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The New York Timesreports that Jeff Sessions was directed to find a reason to fire Comey, and that the move had been in the works for a week or more. Yet, according to The Washington Post, Press Secretary Sean Spicer and his office were "scrambling" to come up with an explanation for the firing for hours yesterday.

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Sessions previously recused himself from all matters related to the FBI and the Justice Department's Russia investigation after it emerged he lied during his Senate confirmation hearing about meeting with the Russian ambassador during the campaign. Apparently, that recusal did not apply to firing the law enforcement official leading the Russia investigation. The new Acting FBI Director, Andrew McCabe, met with President Trump before he was allowed to assume that position, but he will likely have a full-time replacement within days. Whomever the president chooses as FBI Director, no matter their background, cannot reasonably be expected to conduct an investigation into the president's associates with which the public can have confidence. He will be Trump's man. The only solution, then, is the appointment of a special prosecutor to lead the Russia inquiry.

Except even that presents extraordinary conflicts. Since Sessions recused himself—for whatever that's worth at this point—it would be up to his deputy attorney general, Rod Rosenstein, to appoint a special prosecutor. Rosenstein is a career prosecutor with a fine reputation, and was confirmed by the Senate 94-6. But his name is also on that letter providing such a questionable explanation for Comey's firing. Can the public trust that Rosenstein would pick someone dogged, fearless, and independent to get to the bottom of the Russia matter? Can we trust that Sessions, or Trump, would not interfere?

(Any special prosecutor would also depend on the FBI's resources to carry out their investigation, and would work hand-in-hand with agents who ultimately answer to someone who answers to Trump. There was once another way to appoint a special prosecutor: In 1978, following Watergate, Congress passed the Ethics in Government Act, which empowered a three-judge panel from the D.C. Court of Appeals to appoint a special prosecutor. The law was reauthorized several times, but after it was used to appoint Kenneth Starr to investigate President Bill Clinton, Congress allowed it to expire in 1999. Congress would have to pass a new law to reinstate that method—probably with a supermajority vote in order to overcome a possible presidential veto.)

Certainly, the White House has interfered before. First, there was the Devin Nunes fiasco, when the chairman of the House Intelligence Committee found himself running back and forth to the White House grounds (and jumping in and out of cars to lose his aides) in what became such a transparent attempt to hinder that committee's Russia investigation that Nunes was forced to remove himself from the investigation. Then it emerged that the White House had interfered in Senate proceedings in an attempt to prevent former Acting Attorney General Sally Yates from testifying, which she eventually did, about how she informed the White House counsel that she believed Michael Flynn was compromised by the Russians.

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Yates, of course, was also fired—though the reason given was her refusal to defend the president's travel ban—as were all the nation's U.S. Attorneys, although presidents often replace district attorneys when assuming power. That included Preet Bharara of the Southern District of New York, however, whom Trump had told he would stay on, and who would have jurisdiction over, among other things, Trump Tower. And then, of course, there's Comey.

Lost in Tuesday's firestorm was the fact that federal prosecutors subpoenaed aides and associates of Michael Flynn as part of their investigation into Russian meddling in the 2016 election. That investigation, though, could soon depend on people far too close to those under investigation. The echoes of Watergate are clear, but imperfect. After all, the president's Democratic opposition controlled the Senate in Nixon's day.

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